Toronto Mayor Ford Keeps Job, But Far from Vindicated

Toronto mayor Rob Ford will apparently be keeping his job. An appeals court has overturned a previous court decision that had said that Ford had violated the province’s conflict of interest law.

The decision came down today from the Divisional Court which heard Ford’s appeal of his November conviction. The panel of three judges has now concluded that the original trial judge had made an error in finding Ford guilty under the Municipal Conflict of Interest Act.

Many Torontonians were bewildered by the original verdict, and by the fact that it could result (as required by the Act) in Ford’s removal from office and a multi-million dollar by-election. Ford’s offence, after all, was hardly armed robbery. He was merely accused of participating in a city council vote on a relatively small financial matter. The question under consideration at that vote was whether he, Ford, should return a few thousand dollars’ worth of donations that the city’s integrity commissioner says were improperly gathered. So it’s not as if Ford had stolen the money, or embezzled it. And garnering the donations was not itself a legal offence. The problem lay solely in his having voted on this matter, a matter in which he had a personal stake. Many people wondered how it could be that Toronto could lose its duly elected mayor over such a small procedural matter.

But bewilderment about that initial verdict says more about public understanding of conflict of interest than it does about the substance of this case. Conflict of interest isn’t about numbers; it’s about loyalty. And when we think someone has violated a conflict of interest rule it’s not necessarily because we think he or she has made an improper decision, but rather that we think he or she has failed to keep personal business and official duties separate, and that as a result we cannot be sure about what factors may have influenced that decision. It is also, in the end, about public faith in the decision-making processes of our most important institutions.

Be that as it may, today’s decision means that Ford is not guilty of violating the Act, and hence gets to keep his job. My non-lawyer’s understanding of the verdict is this. The decision seems to turn on a technicality. Ford had been accused of wrongfully participating in a February 2012 debate and vote by Toronto city council over whether he, Ford, should return the improperly-gathered donations. A council vote 2 years earlier had required Ford to pay back that money. But, according to today’s ruling, Council didn’t have the authority to engage in that earlier vote. So it was legally null – effectively, it never happened at all, from a legal point of view. And if the earlier vote “didn’t happen,” then the February 2012 vote that essentially responded to that earlier vote was really moot. And if that vote was moot, it cannot have been improper for Ford to participate.

But the court’s decision today is far from a vindication. Ford keeps his job on a legal technicality, the sort of thing that a layperson could never foresee from a reading of the plain wording of the relatively brief and clear Municipal Conflict of Interest Act.

That’s fair enough, from a procedural point of view, but it doesn’t mean that the mayor didn’t do anything wrong. He still took part in a decision in which he had a personal stake. And as a man in a position of power and trust, he not only should not have done so, but he should have known better than to do so. Even if he knew in his heart that his vote in the matter was unbiased, he should have known that that’s beside the point. What matters is that trust in the system requires decision makers to remove themselves from decisions that pertain to their own affairs. Doing so is essential for maintaining public trust in the system.

We can only hope that Ford will proceed now with uncharacteristic humility, and with more eagerness to learn the rules that govern his position than he has thus far demonstrated.

Do you believe politicians should have any other obligations other than their political work? One can always draw the argument that they will conflict with each other, in a very broad sense. What should he have done in you opinion.

I’m with Ford on this one. The context makes all the difference. Reading your post, Ford could’ve solicited those donations for himself. In fact, he used City of Toronto letterhead to solicit small change donations for a local, public, kid’s sports team. This was procedurally improper, sure. Similarly, voting on the matter – whether he should lose his job over it – was procedurally improper on his part, too. But hardly worth the kiss of death; there are more proportionate responses available.

Procedure is, and should only ever be, the handmaiden of justice – and this is something the electorate understands. It would be unjust, in this context, to oust an elected mayor over a defect of procedural adherence which, to paraphrase you, laypeople (ie, the electorate) wouldn’t probably understand. Talk about public perception and shaking the public’s faith in their governance system. I can hear the barbershop conversations now, “Some city this is. The man goes out of his way to raise money for our kids to play sports, and ends up losing his job over it. To hell with all of them!” If anything, the more trouble Ford gets into with the $6 latté sipping urban crowd (like the ones who put procedure over substance), the more galvanized his support, and the tighter his grip on power, becomes. While some of Ford’s supporters – and Ford himself – might not be as comfortable with abstract knowledge (like COI’s) as some of Ford’s detractors are, their heads aren’t 40,000 feet high, adrift in the clouds of abstract learning, but are instead skipping along the surface of day-to-day life. And for those puny-minded earth dwellers, raising money for a local football team shouldn’t get ya fired, broken procedure or not. Thus, this will promote public perception of public institutions, not detract from it, and democracy is strengthened, not weakened.

Thanks for your comment, Kirk. But the court case wasn’t about the fundraising; it was strictly about the vote. As for alternative, more proportionate responses, the Municipal Conflict of Interest Act unfortunately offers none. It’s a rather crude piece of legislation. As far as I can see, the original trial judge had little choice. It may well be that the judges of the appeals court used a strange little technicality to avoid what they saw as a greater injustice.

Right; the case wasn’t about fundraising, it was strictly about the vote, yet the vote was about fundraising. That is the issue of context I spoke of above, and the connections the electorate would rightly make between the fundraising and the vote. As for the availability of responses, if the CA located a legal ‘out’, then the TJ could’ve too. Outside of that – I mean, outside of the strict, letter of the law – judges are nothing if not discretionary, and where there’s a judicial will, there’s often a judicial way.

He has been writing The Business Ethics Blog since November of 2005. The blog is now exclusively syndicated by Canadian Business magazine.

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